1. ' MUSHIR ALAM, J.---In this suit plaintiffs claim specific performance of agreement to sell, dated 30th August, 2002 said to be executed in their favour by one Barkat Ali, defendant No.13 in respect of Plot No.170, Garden East Karachi measuring 902 square yards hereinafter referred to as the suit Plot.
2. ' Plaintiffs filed C.M.A. 1762 of 2005 under Order XXXIX, rules 1 and 2, C.P.C., seeking orders against the defendants Nos.1 to 17 "restraining them from parting with the physical possession of the suit property bearing Plot No.170 Garden East, Karachi admeasuring 902 square yards to create third party rights or interest in the suit property or carry out any construction on the suit property till final decision". Through another C.M.A. 1763 of 2005 under Order XL, rule 1 C.P.C. Seeks appointment of receiver "so that corpus of the suit property be maintained" and "defendants are not allowed to construct".
3. ' Likewise the defendant No.13 filed C.M.A. 3045 of 2005 under Order VII, rule 11, C.P.C. Seeking rejection of plaint on the ground that the suit is based on forged sale agreement and forged receipt. Followed by another C.M.A. 4476 of 2005 under Order XXXIX, rule 4, C.P.C. Filed by the defendants Nos.14 and 15, for "discharge, vary or set aside of the orders, dated 16-3-2005 and 16-4- 2005. On the ground "that the defendants Nos.14 and 15 are purchasers of the suit property for valuable consideration and without notice of any previous transaction through Registered Conveyance Deed duly signed by the owners of the property presented for registration on 22-11- 2004 and registered on 28-3-2005".
4. ' It was claimed in the suit that the plaintiffs, were tenants in respect of tenements over the suit plot.
5. Plaintiffs claimed to have entered into a sale agreement in respect of the suit property with the defendant No.13 for a total sale consideration of Rs.1.9 Million. It is claimed that a sum of Rs.1.00 Million was paid as earnest money balance amount was payable within 60 days after completion of the formalities mentioned in the agreement. Which, inter alia required the vendor to obtain clearance certificate from Excise and Taxation Department regarding up to date payment of the property tax. Secondly, to obtain renewal of the lease and lastly to bring on record names of all the legal heirs of Fatima daughter of Rahimo and so also obtained Power of Attorney from other co- owners.
6. ' It was pleaded that at the time of executing the sale agreement, dated 30-8-2002 the defendant No.13 provided a true copy of the Extract from the property register (P/2) to the plaintiffs, which recorded name of the owners. It is stated that in terms of the endorsement from the property register, it was mentioned "not valid for sale lease expired in 1995". It is the case of the plaintiff that, defendant. No.13 kept the plaintiffs on false hope to comply with the conditions of the sale agreement but he failed. It is stated that on 22-11-2004 the defendants sold the suit property to defendants Nos.13 and 14 for a paltry sum of Rs.4.2 Million and impersonated Fatima daughter of Rahimo one of the deceased co-owners. It is stated that when such fraudulent acts were brought to the notice of authorities, conveyance deed and power of attorney executed by the co-owners in favour of defendants Nos. 14 and 15 was cancelled on 31-12-2004. It was further urged that from the official extract of the property register condition "not valid for sale" was fraudulently removed to complete the sham transaction.
7. ' Defendants Nos.1 to 11 denied the sale transaction. It was denied that the defendant No.13 was ever authorized to negotiate sale or enter into sale agreement, they termed the alleged transaction as fraudulent and prayed for the dismissal of the suit.
8. ' Defendant No.13 in his written statement denied the sale transaction, on the ground firstly, he had no authority to sell the property of other co-owners. Secondly, it was pleaded that, his signatures on the agreement and the receipt were forged. Plaintiff who was the ex-tenant manufactured the documents subsequently, have approached the Court with unclean hands and suit is liable to be dismissed.
9. ' Defendants Nos. 14 and 15 asserted that they are bona fide purchasers for value and without any notice of any prior sale transaction. It was pleaded that conveyance had already been executed, they are in possession, construction has been demolished and conveyance has been executed by all the co-owners cannot be annulled. It was pleaded that, in enquiry the Anti-Corruption Establishment cleared the transaction, whereafter formal registration of the conveyance deed was effected.
10. ' Mr. Abid S. Zuberi, learned counsel for the Plaintiffs contends that the defendants Nos. 14 and 15 have acquired no right, title and or interest in the property as none vested in the co-owners themselves as the lease of the land has since expired. It was also contended that, the sale-deed was registered after the injunctive orders were served on the defendants. He has relied on Muhammad Bashir and others v. Iftikhar Ali and another (PLD 2004 SC 465). It was therefore contended that the transaction between the defendants 1 to 13 and defendants Nos. 14 and 15 is void and cannot be sanctified by the Court.
11. ' Mr. Zuberi, laid much emphasis on the fact that one of the co-owners Mst. Fatima daughter of Rahimo, has expired in 1995, some imposter was produced in her place to execute conveyance deed. He had drawn my attention to the description of Mst. Fatima in the impugned sale-deed to show that her photograph has not been affixed, it bears wrong N.I.C. Number against her name. Mr. Zuberi however conceded that none of her successor or beneficiary in interest has approached the Court or made any grievance. Mr. Zuberi contends that plaintiffs agreement is prior in time have precedence over subsequent sham transaction.
12. ' It was urged that construction is being raised without any approved plan and even after service was effected and the defendants Nos.14 and 15 are in gross breach of the Court order.
13. ' As against above Mr. Sajjad Ali Shah, learned counsel appearing for defendants Nos. 14 and 15 vehemently argued that the sale agreement relied upon by the plaintiff, is a forged document suit is not maintainable. Without prejudice, it was . Submitted that even if it is presumed that defendant No.13 executed it, then also such agreement is not capable of specific performance for more than one reason. According to him, there are 27 co-owners and defendant No. 13 alone could not bind other co-owners under the agreement without any authority from them. He has further drawn my attention to one of the condition of the purported agreement to sell, which required the defendant No.13 to obtain power of attorney from other co-owners, which shows that defendant No.13 had no authority. Besides signature of the defendant No.13 on the purported agreement of sale and receipt have been forged, dissimilarity in the signature could be examined by the Court on disputed sale agreement and registered conveyance deed. According to him, presumption of correctness is attached to a registered document as against disputed document.
14. ' Mr. Sajjad Ali Shah urged that even it is presumed that the defendant No.13 executed agreement, to the exclusion of all other 26 co-owners then also the plaintiffs could only claim damages and not specific performance. To support his argument, he has placed reliance on Mangal Singh v.
15. Pandit Dial Chand AIR 1940 Lahore 159. In said case Court declined specific performance of an agreement entered into by one of the co-sharers for the entire property, to which other co-sharer did not agree.
16. ' Mr. Sajjad Ali Shah argued that whole emphasis of the plaintiff's claim is on late Fatima daughter of Rahimo. He has drawn my attention to 'declaration of gift' made by Mst. Fatima daughter of Rahimo during her life in favour of Mst. Fatima wife of Muhammad Ali. Photocopy of the declaration of gift placed at page 54 to C.M.A. No.4476 of 2005 and in conveyance deed at page 22 her identity is given and name of her husband Muhammad Ali is also mentioned. It was therefore argued that, similarity in the name of doner and donee had created confusion in the mind of the plaintiffs.
17. ' Mr. Sajjad Ali Shah, drew the attention of the Court, towards extract from the Property Register Annexure P/2 to the plaint, alleged to have been supplied along with the sale agreement to show that, it was issued on 2-4-2004 whereas the agreement is dated 30-8-2002. It was therefore urged that the very transaction on the face of it demolished. He further consolidated his argument that in case such extract was available with the plaintiff then why the names of all the legal heirs are not mentioned in the alleged sale agreement. It was further contended that the plaintiff claims to have approached the Anti-Corruption Establishment against the alleged fraudulent sale on 13-12-2004 through letter, dated 13-12-2004 at page 171 of the file and so also the Sub-Registrar. Mr. Sajjad Ali Shah, learned counsel has read the letter to argue that dishonest claim in suit is fully exposed. In said letter it was not claimed that any sale agreement was executed and secondly approximate sale consideration was mentioned. It was urged that had the sale agreement been in existence at that time, specific amount as alleged in the sale agreement would have found mentioned in the complaint. Plaintiffs in said complaint had acknowledged that conveyance deed has been registered in favour of the defendants Nos. 14 and 15, which is sufficient to show that sale agreement was manufactured. It was further urged that plaintiffs were writing to all the Authorities except the defendants Nos.14 and 15 to warn against the transaction. Mr. Sajjad Ali Shah, also pointed out that the attested copy of the Conveyance Deed was obtained by the plaintiffs on 27-11-2004, letter to Anti-Corruption was written on 13-12-2004 and suit was filed on 16-3-2005, he therefore, contends that, suit suffers from laches.
18. ' Mr. Sajjad Ali Shah, learned counsel has challenged the letter allegedly issued "for" Sub-Register T- Division, dated 31-12-2004, notifying cancellation and rejection of conveyance deed and power of attorney. He has drawn the attention of Court to letter of Anti-Corruption Establishment, dismissing the complaint of the plaintiffs, letter, dated 24th March, 2005 has been placed on record at page 47 to C.M.A. No.4476 of 2005, such letter was not disputed in the rejoinder. He stated that after enquiry was resolved in favour of defendants and after filing requisite heirs-ship certificates to deceased co-owners the conveyance deed was formally registered on 28-3-2005.
19. ' It is contended that conveyance deed was executed on 22-11-2003, it was merely adjourned for want of heirship certificates of some of the legal heirs, which when furnished, conveyance deed was formally registered. It was urged that adjournment was merely a procedural matter it does not affect the very transaction, execution of conveyance took place much before filing of the suit, the question of effecting formal registration is merely ministerial act it does not annul the transaction.
20. ' It was urged that pursuant to Conveyance Deed the possession was delivered to defendants Nos.
21. 14 and 15, transaction is protected under section 27(b) of the Specific Relief Act. He contends that the apprehension of the plaintiff as regard construction are ill-founded, he made a statement at bar that construction raised would be strictly in accordance with approved building plan and in accordance with building laws, rules and regulations.
22. ' Mr. Sajjad Ali Shah further contends that, Plaintiffs have already admitted that all the co-owners have executed the conveyance deed in favour of defendants Nos. 14 and 15 much before the suit was filed and in pursuance thereof they are in possession. It was stated that injunctive order was obtained by suppression of facts after the transaction was complete, therefore, the injunctive order not to create third party interest or not to transfer possession is merely superfluous. He contended vesting to property rights had already taken place on 22-11-2004 when conveyance deed was executed, and even if it is presumed that, the Sub-Registrar recorded registration after clearance by the Anti-Corruption after the injunctive order, at the best penalty could be imposed and sale could not be avoided. Reliance was placed on Mst. Saadat Parveen and others 1988 MLD 2602. In said case it was ruled that alienation before the stay order was passed could not be invalidated.
23. ' Mr. Nadeem Azher Siddiqui, learned counsel appearing for defendants Nos. 1 to 11 contended that the co-owners had never authorized Barkat Ali to represent them nor, there is any averment in the plaint that he had such an authority. Mr. Nadeem Azher, learned counsel has placed reliance on Khayabane-e-Iqbal (Pvt.) Ltd. And others v. Mjustafa Haji Muhammad 1996 CLD 1758. In said case at page 811, it was held that, "No doubt, burden upon plaintiff for obtaining interim injunction in a suit for specific performance is not as onerous as obtaining a decree. But plaintiff is required to prima facie show that agreement upon which he is basing his claim for specific performance is a lawful contract and has a binding force in law". And Aijaz Mehmood v. Shaikh Muhammad Jamil and others PLD 1987 Karachi 546, in said suit, specific performance of a contract entered into by a Director of a Company without authority was declined to be enforced by the Court. The decision was upheld in appeal reported as Aijaz Mehmood v. Shaikh Muhammad Jamil and others 1996 CLC 1027.
24. ' Mr. Nadeem Azher further contended that Conveyance Deed would be effective from the date of execution and not from the date of registration which is merely a ministerial act.
25. ' Mr. Abid Zuberi, learned counsel for the plaintiff exercising right of rebuttal contends that the extract from the Property Register Annexure "P/2" to the plaint was obtained by one Mst. Amna and not by the plaintiff. He however admits that mistakenly it was mentioned in the pleadings that it was provided along with sale agreement, whereas other extract was provided which could be produced.
26. ' In rebuttal to the contentions of Messrs Sajjad Ali Shah and Nadeem Azher, Advocates that one co-owner cannot bind the other co-owners, Mr. Zuberi contended that, since the plaintiffs have stepped into the shoes of one of the co-owners. Therefore, they are entitled to each and every inch of the property, for such proposition reliance was placed on Muhammad Sarwar v. Zulfigar and others PLD 1998 SCMR 593. In said case the sale was effected by one of the co-owners of Khata and possession transferred, in the context of the case, it was held that vendee had stepped into the shoes of the joint Khatadar.
27. ' Mr. Zuberi, urged that, during interim orders the transaction was recorded, which cannot be sanctified by the Court. Reliance was placed on Muhammad Sabir Khan v. Rahim Bakhsh PLD 2002 SC 303 and Edulji Dinshaw Ltd. v. Income Tax Officer PLD 1990 SC 399. In the case of Muhammad Sabir Khan (supra) , it was held that, "legal protection of a bona fide purchaser could not be claimed under an invalid transaction". It was further held that "sale made by co-sharer beyond his share in the land would be bad in law". Case of Edulji Dinshaw Ltd. PLD 1990 SC 399 is not relevant in the present context. He further urged that though the defendant No.13 has filed the reply but none represent him today, which shows the mischief played by him in the matter. Mr. Nadeem Azher learned counsel on a point of clarification only that in terms of section 71 of the Registration Act, the Registrar could refuse the registration but whole document cannot be annulled.
28. ' I have heard the arguments, perused the record and thoroughly examined the case-laws cited at bar.
29. ' Moot controversy for the disposal of the listed applications that needs to be resolved is the implications ' of the agreement signed by Barkat Ali defendant No.13 one of 26 co-owners of the suit property. Though execution of the agreement and receipt is disputed, even if the arguments of Mr. Zuberi are considered on its face value. Neither in the recital nor in the body of the purported agreement, there is any representation oji behalf of said Barkat Ali that, he is authorized to deal or negotiate any transaction on behalf of other co-owners. Contrarily in the sale agreement it is stipulated that vendor "shall get/bring on record the name of all the legal heirs of Fatima daughter of Rahimo and obtained power of attorney from other co-owners". It is not the case of the plaintiff in the pleading that, Barkat Ali executed the agreement for and on behalf of all the other co- owners:Therefore, it cannot be said that said Barkat represented to be authorized on behalf of the other co-owners, at the best it could be said that he undertook to obtain power of attorney, which admittedly he did not obtain.
30. A co-sharer, even if in possession of entire property is not legally competent to alienate joint property in excess of his share, unless it is shown that he was so authorized by other co-owners (see also section 44 of the Transfer of Property Act, 1882). In the case of Mangal Singh (AIR 1940 Lah.159), one of the co-sharers entered into a contract of sale of the entire land including the interests of other co-sharers, at the same time giving an undertaking to obtain the consent of the other co-sharers to the transfer. The contract was not fulfilled on account of the refusal of the rest of the co-sharers to give up their share. Two Courts below dismissed the suit for specific performance. However in second appeal, it was ruled that in such case suit for damage would, lie and the matter was remanded. In the case reported as Ajaib Khan v. Allah Ditta 2002 YLR 2723, it was proved that agreement to sell was executed by one of the co-owners of a residential house.
31. The two Courts below refused specific performance, in revision Lahore High Court held that, "As the majority of the share in the property was not subject-matter for sale therefore it would be to the disadvantage of the other co-sharers and it would cause serious prejudice to their rights.
32. Accordingly I hold that the specific performance of the agreement to sell, even to the extent of the share of Allah Ditta, defendant No.1 is neither possible nor it would be in consonance with the principal of equity. The relief of specific performance is discretionary and is also be viewed from the principle of equity and even in the case where the Court reaches to the conclusion that specific performance of a contract would not advance the cause of justice rather than it would defy principle of equity, the Courts have discretion to decline the relief". Revisional Court while upholding the judgments of trial and Appellate Court; directed refund of earnest money and awarded surcharge.
33. ' In case referred to above, it was proved that the co-sharer executed the agreement but other co- sharer declined to accept the sale, yet the Court on merits declined specific performance In the light of above, the case in hand, the agreement to sell is seriously disputed. Even if it were established at trial, then too the plaintiffs if at all, would be entitled to claim rights to the extent of Barkat Ali's share in the property and nothing more. It is noted that Barkat Ali is one of the 27 co- sharers in the subject property and hold meagre share of about 2/17th share in the property. It would be highly disadvantageous for the defendants Nos.14 and 15 who undisputedly hold majority shares in the suit property to accept an outsider amongst them besides, it would be inequitable to thrust a stranger on them. Secondly, it is admitted position that the Conveyance Deed has been executed in favour of the defendants Nos.14 and 15 by all the legal heirs of Rahimo. Even if the claim of plaintiffs to the extent of Late Fatima, or even to the extent of Barkat Ali is presumed to be correct, then too, majority has executed the conveyance deed in favour of defendants Nos. 14 and 15 on 22- 11-2004. Mst. Fatima is stated to have died issueless, and the gift is kept out of consideration, apparently her brothers and sisters succeeded her who are co-sharers in the property in their own right as well as her successor, all have executed the Conveyance. Challenge to the transaction made on behalf of deceased co-sharer could only be thrown by her beneficiary or successor or not by the strangers including the plaintiffs who even otherwise do not claim any interest on her behalf. Plaintiffs are claiming rights and interest if any through Barkat Ali, who himself had executed and signed the Conveyance Deed. Plaintiff has not placed any material to show that the defendants Nos.14 and 15 were of the earlier transaction, if any. First complaint was addressed to the Sub-Registrar and Anti-Corruption Establishment, that too after the transaction was over, therefore prima facie, bad faith cannot be attributed towards defendants Nos. 14 and 15.
34. Subsequent transfer of property could only be assailed and impugned where it is shown that the subsequent purchaser lacks good faith and had notice of the earlier transaction. Both faith of mala fide of the seller is not relevant consideration in such cases.
35. ' In the case of Muhammad Bashir and others (PLD 2004 SC 465) as relied upon by Mr. Zuberi, the subsequent purchaser, despite knowledge of earlier transaction entered into agreement and took over the possession and executed the conveyance deed. Suit for specific performance as well as appeal by previous purchaser was dismissed in view of the plea that subsequent purchaser had protection of section 27(b) of Specific Relief Act, being purchaser for consideration without notice.
36. In revision findings of Court below were set aside and Court ruled that subsequent purchaser failed to discharge the burden of honest and good faith transaction as despite knowledge of earlier transaction they parted with money and entered the sale-deed.
37. ' It was claimed in the suit that the agreement to sell was executed on 20-8-2002. Balance amount was to be paid within 60 days after the completion of the formalities agreed under the agreement.
38. Till filing of the suit, nothing has been brought on record to show that the plaintiffs ever demanded the defendant No.13 to complete the formalities or to obtain power of attorney as committed under the purported agreement to sell. Legal notice, dated 26-2-2005 was addressed to Barkat Ali and one Piyar Ali, at the address, which building to the knowledge of the plaintiff was demolished much before the suit was filed. Even the legal notice issued by an Advocate from Hyderabad is seriously disputed as no postal receipt has been placed on record. Plaintiffs became aware of the conveyance deed in favour of defendants Nos. 14 and 15 on 22-11-2004 yet they did not come forward to seek cancellation of Conveyance Deed nor even made any attempt to seek amendment of the plaint. Instead strangely enough they chose to file complaint with the Sub- Registrar and Anti-Corruption.
39. ' Contention of Mr. Sajjad Ali Shah, appears to carry some weight, when he pointed out that the confusion had apparently occurred as late Mst. Fatima wife of Rahimo had gifted the property during her life time to Mst. Faitma wife of MuhaMmad Ali. Copy of declaration of gift by late Fatima daughter of Rahimoo in favour of Fatima wife of Muhammad Ali has been filed along with C.M.A. No. 4476 of 2005 page 54. It appears that the plaintiffs have not disputed such gift, in the counter- affidavit. Even if for the sake of argument it is presumed that conveyance on behalf of Mst. Fatima is not enforceable for want of proper authorization. Fact remains that there is no denial that all other co-owners including Barkat Ali had executed a conveyance deed in favour of defendants Nos. 14 and 15 which cannot be undone in suit for specific performance. Plaintiffs are not representing the interest of legal heirs or beneficiary of late Mst. Fatima.
40. Contention of Mr. Zuberi that, a co-sharer, in law, is deemed to have right and interest over each inch of undivided property. There is no cavil to the proposition, but it does not mean that such co- sharer may bind other co-sharers of the property without their authority. In case, one co-sharer enters into an agreement for the entire property of other co-sharers, it is invalid at least to the extent of other co-sharers unless of course it is shown that such co-sharer had authority on behalf of other co-sharers in this regard. In the instant case there is nothing on record to substantiate that the other co-owner had in fact authorized to defendant No.13 to enter any contract to alienate the suit property. Contention of Mr. Zuberi that the very transaction is tainted with mala fide and gross negligence inasmuch as Mst. Fatima was impersonated. He conceded that none of the legal heirs of Mst. Fatima or the beneficiary of her share has come forward to claim any right and interest in the property.
41. ' Admittedly, pursuant to conveyance deed, dated 22-11-2004 the defendants Nos. 14 and 15 are in possession. The transaction was entered into much before the institution of the present suit. There is nothing on record to suggest that the defendant Nos.14 and 15 or for that matter, other defendants and co-sharers were in knowledge of the any sale agreement purportedly executed between the plaintiff's and defendant No.13. It is settled position in law that, subsequent transferee in good faith for value without notice of earlier transaction enjoys statutory protection, irrespective of the Pact that the transaction requiring registration is not registered. (See proviso to section 53-A of the Transfer of Property Act, 1882 read with section 27(b) of the Specific Relief Act).
42. ' As regards contention of Mr. Zuberi that the Sub-Registrar cancelled the subsequent transaction is concerned, though not only the authority of Sub-Registrar but, the very cancellation is disputed.
43. Even if the transaction as regards deceased Mst. Fatima is kept out of consideration, then also sale by other co-owners cannot be disturbed as already discussed. It has come on record, that the defendants/vendors removed the objections and the Conveyance Deed has been accorded registration.
44. ' For the foregoing reasons, plaintiffs have failed to make out a prima facie good case for the grant of and for the confirmation of ad interim injunction, which is hereby vacated, attachment order, dated 6-4-2006 stands recalled. In case plaintiff succeeds to establish the agreement to sell at trial, Plaintiff may be awarded compensation as provided for under section 19 of the Specific Relief Act as against defendant No. 13.
45. For the foregoing reasons, vide short order, dated 16-6-2005 the application (C.M.A. No. 1762 of 2005) under Order XXXIX, rules 1 and 2, C.P.C. And C.M.A. No. 1763 of 2005 under Order XL to rule 1, C.P.C. Were dismissed. C.M.A. No.4476 of 2005 under Order XXXIX, rule 4, C.P.C. Was allowed. C.M.A.
46. No.3054 of 2005 under Order VII, rule 11, C.P.C. Was dismissed for non-prosecution. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.